Louisiana Case Laws
Click on the below to read Louisiana Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2004
Louisiana Bail Case Law 2012
In State v. Allen, 2012 WL 3211248 (La.App. August 8, 2012), following remand from the Supreme Court reported at 2012 WL 1254758 (La. April 13, 2012), a five judge panel of the Court of Appeals reconsidered the State’s appeal from the trial court’s order setting aside two bond forfeitures. The surety did not recover the defendant within the permitted six month period, but it timely moved to extend the time within which to surrender him and, before the motion was heard, returned him to custody. The trial court granted the time extension and set aside the forfeiture judgments. The State appealed.
The surety represented that the defendant had been a cooperating witness for the federal government in a drug investigation and had been in federal protective custody. The surety argued that this was a “fortuitous event” making performance of its bond obligations impossible within the meaning of La. Code Crim. Proc. Art. 345(I). The State argued that a fortuitous event was limited to an act of God such as a hurricane or a national emergency. The Court agreed with the surety, and stated, “there is nothing in the language that specifically restricts its application to a statewide disaster or emergency situations.” Although the surety’s proof was very circumstantial, it was accepted by the trial court, and the Court thought the trial court had discretion in deciding what proof was satisfactory to it to establish that a fortuitous event made it impossible for the surety to perform. The Court rejected the State’s argument that deletion of “to the discretion of the court” from art. 345(I) was meant to remove the trial court’s discretion in determining what proof was satisfactory.
A concurring opinion would have applied the pre-amendment language of art. 345(I), because the bond was written prior to the amendment, and affirmed based on the “to the discretion of the court” provision that was later removed. A dissenting opinion would have reversed the trial court and held that the surety failed to show a fortuitous event that made its performance impossible. The dissent thought that the amendment to art. 345(I) removed the trial court’s discretion and required objective proof of a fortuitous event. The dissent characterized the trial court’s action as based on hearsay, supposition and improper judicial notice.
In Barlow v. Safety National Casualty Corp., 2012 WL 3027992 (M.D.La. July 24, 2012) is a third opinion on the surety’s preliminary objections to the indemnitor’s alleged class action complaint. The surety moved to dismiss pursuant to La.C.C.P. art. 971, the Louisiana “anti-SLAPP” statute. The court found that the motion was not filed within the 60 period permitted by art. 971 and denied it as untimely.
In Barlow v. Safety National Casualty Corp., C.A. No. 11-236 (M.D.La. May 30, 2012) an indemnitor sued the surety and various alleged debt collectors under the federal Fair Debt Collection Practices Act and for abuse of process under Louisiana law. The complaint alleged that the bond forfeiture judgment had been set aside when the bond principal appeared in court a month after entry of the judgment but that the surety, through its alleged representatives, continued to try to collect the amount of the forfeiture from the indemnitor, including by filing suit in state court. The defendants moved to dismiss the complaint. The court granted the motion as to some aspects of the indemnitor’s claims but denied it as to others. The court thought that the Fair Debt Collection Practices Act applied and that the indemnitor’s allegation that the surety’s representatives stated she owed the entire bond amount was a sufficient allegation of a false representation if it was proven she did not owe that amount. The court dismissed claims based on allegations that the debt collectors failed to adequately identify themselves or threatened actions they did not intend to take.
In State v. Bonilla, 2012 WL 1880993 (La.App. May 23, 2012) a trial date was set, and the defendant was informed of the date, before bail was posted. When the surety posted the bond, the bond documents included a required appearance for arraignment prior to the trial date. The defendant failed to appear on the arraignment date and the court took no action. After he failed to appear for trial, the bond was forfeited, and the surety argued that the forfeiture should be nullified because the surety was not given notice of the trial date. The Court held that the previously set trial date was not a “new appearance date” about which the surety had a right to notice. The Court affirmed denial of the surety’s petition to nullify the forfeiture.
In State v. Allen, Case No. 11-K-2843 (La. April 13, 2012) the trial court set aside bond forfeitures, and the State appealed. In a 2-1 decision, the Court of Appeal reversed and denied the surety’s request for rehearing before a five judge panel, see 78 So.3d 841 (La.App. November 23, 2011) and 2012 WL 1193974 (La.App. January 4, 2012). The Supreme Court granted review and found that bail forfeiture was a civil matter for which rehearing before a five judge panel was required. The Court stated, “Because one judge of the three-judge panel dissented, the court of appeal erred in failing to direct that the case be reargued before a five-judge panel as required by La. Const. art. 5, §8(B).” The Court vacated the decision of the Court of Appeal and remanded the case for rehearing before a five-judge panel.
In Parish of Jefferson v. Bankers Insurance Co., 2012 WL 638450 (La.App. February 28, 2012) the Parish sued a surety and its agent alleging underpayment of the bail bond “premium fee” required by La. R.S. 13:718. The allegations as to the agent were that he underpaid or underreported the premium fees to the surety. The trial court dismissed the case as to the agent, and the Parish appealed. The Court affirmed because the statute imposed a duty on only the surety company, not on the agent, and the Parish did not allege facts that would establish an independent duty, in contract or tort, that the agent owed to the Parish.
In State v. Brown, 2012 WL 90115 (La.App. January 11, 2012) the defendant failed to appear on November 19, 2009, and the court ordered forfeiture of the bond. The defendant appeared the next day, however, and the case was reset for February 10, 2010. The defendant again failed to appear on February 10, a bond forfeiture hearing was held, judgment entered, and the clerk mailed notice of the forfeiture to the surety on June 4. The surety moved to set aside the forfeiture and appealed the trial court’s denial of its motion. At the time, La.R.S. 15:85(3)(c) provided that sureties were released if notice of judgment on a bond was not mailed within 60 days of the failure to appear. The surety argued that the bond was forfeited on November 19 and no notice was mailed within 60 days. The Court held that the defendant’s appearance on November 20 set aside the judgment of forfeiture by operation of law and effectively reinstated the bond by removing it from the ranks of the forfeited. The notice on June 4, however, was not mailed within 60 days of the failure to appear on February 10. The Court stated, “Prompt notice enhances the possibility that the surety will locate and surrender the defendant. The purpose of the bond forfeiture statute was defeated in this instance. As a result, we find Bankers is released of any and all obligations under the bond pursuant to La. R.S. 15:85(3)(c).” The Court reversed the judgment denying the surety’s motion to set aside the bond forfeiture.
Louisiana Case Law 2011
In State v. Allen, Case No. 2011-KA-693 (La.App. November 28, 2011) the surety moved for an extension of time to surrender the defendant. The motion was filed within six months of the mailing of notice of judgment but heard after the six month period expired. Prior to the scheduled hearing, but 22 days after expiration of the six month period, the surety surrendered the defendant. At the hearing the surety argued that a “fortuitous event” prevented it from surrendering the defendant within the six month period and, therefore, it was entitled to an extension of the surrender period pursuant to La. C.Cr.P. Art. 345(I). The fortuitous event was the alleged fact that the defendant was an unindicted co-conspirator in a federal drug prosecution and subject to federal protection. He was not, however, incarcerated, and the surety eventually recovered him at a private residence. The trial court found that it would have granted a brief extension and so the surrender would have been timely and granted the surety’s motion to set aside the judgment on the bonds. The State appealed.
The Court of Appeals, in a 2-1 decision, held that the 2010 amendment to Art. 345(I) reduced the very broad discretion afforded trial courts in determining what was a fortuitous event that made surrender of the defendant impossible. The change was procedural; therefore it applied even though the effective date of the amendment was after the defendant’s failure to appear. Under the amended Art. 345(I), the determination of whether a fortuitous event occurred and made surrender of the defendant impossible was objective not subjective, and on the record of this case there was insufficient proof of a fortuitous event that made it impossible for the surety to surrender the defendant within the statutory six month period. The dissenting Judge would have affirmed the trial court because he thought the trial court acted within its discretion.
In Surety Corporation of America v. Cannizzaro, 2011 WL 1870096 (E.D.La. May 13, 2011) a managing general agent sued several state and local officials alleging that some 54 state court bond forfeiture judgments were void on constitutional grounds and should not be enforced. The surety had filed state court litigation involving similar claims to prevent enforcement of some of the same judgments. The court thought that while it might have jurisdiction over the claims because the managing general agent was not a party to the state court judgments, it abstained from exercising that jurisdiction and dismissed the case pursuant to Younger v. Harris, 401 U.S. 37 (1971). The federal constitutional questions could be raised in the Louisiana courts, and the relief sought would be an unwarranted interference with Louisiana’s judicial proceedings.
In A Fuselier Bonding Service, Inc. v. Perez, 2011 WL 1273620 (La.App. April 6, 2011) the surety and agent sued an indemnitor and the indemnitor filed a counterclaim both in his own right and as the purported representative of a class of persons who paid recovery fees to the agent. The City Court entered judgment for the surety and agent and dismissed the indemnitor’s counterclaims with prejudice. On appeal, the indemnitor argued that the defendant failed to appear because he was incarcerated in Texas and by statute the bond default was void; therefore, the indemnitor did not owe anything. The Court pointed out that the defendant’s leaving Louisiana and being arrested for another crime were both violations of the agreement between the agent and the defendant that the indemnitor had guaranteed. The Court affirmed judgment for the agent for $370.13 of expenses, $500 for a minimum recovery fee, $25.00 NCIC fee, and $500 attorneys fees. The Court also affirmed dismissal of the indemnitor’s individual counterclaim with prejudice. The purported class action counterclaim, however, exceeded the City Court’s jurisdictional amount and should have been dismissed without prejudice for lack of jurisdiction.
Louisiana Case Law 2010
In State v. Washington, Case No. 10-CA-353 (La.App. November 23, 2010) the defendant failed to appear, but he appeared three days later and the court reset his case for trial. No notice was given to the surety or its agent. After the defendant did not appear on the reset trial date, the court forfeited the bond. More than four months later, the surety filed a summary proceeding in the criminal matter seeking to set aside forfeiture of its bond because the statutory notice to the surety or agent of the reset appearance date was not given after the initial failure to appear. The trial court denied the motion and the surety appealed. The Court held that the surety’s motion had to be filed within 60 days of the mailing of the notice of bond forfeiture and that its failure to meet the 60 day requirement applicable to such summary proceedings barred it from any relief. The Court affirmed the judgment without considering the merits of the surety’s appeal.
In State v. Fontenot, 2010 WL 99045 (La.App. January 13, 2010) the defendant failed to appear and the court entered a written judgment forfeiting the bond. A few days later, the defendant surrendered. When he subsequently failed to appear, another written judgment was entered. The surety did not appeal, but some six months later it moved to set aside the forfeiture arguing that the bond should have been discharged when the defendant surrendered after the first forfeiture. The State opposed the surety’s motion on the ground that it was not filed within 60 days of entry of the judgment. The court denied the surety’s motion from the bench but did not enter a written order. The surety appealed, and the Court dismissed the appeal as not from an appealable judgment. The written forfeiture judgment was appealable, but the surety’s time within which to appeal from it had expired. An appeal from denial of the surety’s motion for relief from the forfeiture could be timely, but there was no written judgment denying the motion. The Court dismissed the appeal.
Louisiana Case Law 2009
In Tarver v. Safety National Casualty Corp., 2009 WL 700691 (W.D.La. March 17, 2009) five individual indemnitors sued the surety alleging that although the defendants failed to appear and the bonds were forfeited, the defendants each appeared in court within six months. The plaintiffs complained that the surety still demanded indemnity. The indemnity agreements covered costs as well as forfeitures and included a stipulation for a minimum amount of costs that would be suffered if the defendants failed to appear. The plaintiffs claimed that it was a breach of the indemnity agreements to sue to enforce the agreements, which the court stated bordered on the absurd. The plaintiffs also relied on a statute that applied to insureds or claimants on insurance policies, but the defendants were neither. The court granted the surety’s motion to dismiss and closed the case.
In State v. Weaver, 2009 WL 1324728 (La.App. May 12, 2009) the bond listed a street address but no apartment number as the defendant’s address. The defendant never changed her address of record. A number of attempts to serve her were made, and a few were successful. At some point, “Apt. B” was added to subpoenas issued to her in the case, and a hearing did not establish who made the addition or if it was accurate. The surety argued that the forfeiture was for the defendant’s failure to appear in response to a subpoena that included Apt. B and therefore she was not given proper notice and the bond forfeiture had to be set aside. The Court agreed and held that the State had the burden to show notice or that the defendant gave an incorrect address or evaded service. The fact that the defendant was not served at apartment B did not show she gave an incorrect address.
In State v. Curtis, 2009 WL 1324749 (La.App. May 12, 2009) the bond listed a street address for the defendant but no apartment number, and the defendant never filed a change of address. Hurricane Katrina delayed the criminal proceeding. A new subpoena was issued to the defendant at the address on the bond but with an apartment number added. After the defendant failed to appear, the bond was forfeited. The surety moved to set aside the forfeiture and declare the bond a nullity because the defendant was not provided notice of the court date. The Court agreed that adding the apartment number meant the State could not rely on the address on the bond and therefore had not given the required notice. It nevertheless affirmed judgment against the surety because the surety failed to file its motion to set aside the forfeiture within 60 days after mailing of the notice of forfeiture as required by La. R.S. 15:85(5). Even with extensions of deadlines granted by the Legislature following Hurricane Katrina, the motion was not timely.
In State v. Thompson, 2009 WL 4824696 (La.App. December 16, 2009) the defendant absconded during trial and the bond was forfeited. The surety alleged that it recovered him a few days later and attempted to surrender him to the sheriff, but the sheriff refused to detain him. The only evidence offered in support of the allegation, however, was a copy of a document entitled “Refusal of Surrender of Criminal Defendant.” The State disputed the authenticity of the document and objected to its admission into evidence. No witness authenticated the document, and the court thought it was hearsay and sustained the objection. There was then no evidence that the surety attempted to surrender the defendant, so the court denied the surety’s motion. Apparently similar documents had been accepted in the past, but the State had not objected. Here there was an objection. The Court of Appeals affirmed because it agreed that the document was inadmissible hearsay.
In State v. Washington, 2009 WL 5125352 (La.App. December 29, 2009) the defendant failed to appear for a hearing on May 27, 2008. He appeared, however, on May 30 and a trial date of June 18 was set. When he failed to appear on June 18, the bond was forfeited. The surety moved to set aside the judgment of forfeiture because after the defendant failed to appear on May 27 the State failed to issue a notice to the surety or its agent of the June 18 trial date. One judge heard arguments on the surety’s motion, took it under advisement, and orally denied it. Another judge signed an order denying the motion, and the surety appealed. The Court of Appeal did not reach the merits of the surety’s argument because it held that the signed order appealed from was a nullity. The judge who heard the matter is the judge who must sign the order unless the law provides otherwise. Here there was no applicable exception, and the judgment was vacated and the case remanded for entry of a proper judgment.
Louisiana Case Law 2008
State v. Williams, 977 So.2d 154 (La.App. 2008) held that the surety was discharged by the State’s failure to comply with the requirement that the clerk mail notice of forfeiture to the surety within 60 days of the defendant’s failure to appear. The defendant failed to appear for a hearing on November 28, 2006. The court set January 9, 2007, for a rule requiring the surety to produce the defendant. The defendant did not appear on January 9, and the order of forfeiture was entered, but the clerk did not mail the notice of forfeiture to the surety until February 5. The issue was whether the 60 day period to mail the notice started on the first date the defendant failed to appear or the date the order of forfeiture was entered. The Court held that the January 9 hearing was not a continuation of the hearing on November 28, and the defendant’s failure to appear was on November 28. The trial court then had 60 days from November 28 to complete the forfeiture process including mailing notice of entry of the order. When 60 days elapsed without mailing the notice, the bond was discharged. The fact that for the first 42 days of the 60 days notice could not be mailed because the order of forfeiture had not been entered did not change the requirement. The Court noted that the purpose of the 60 day deadline was to assure that the surety received prompt notice of the defendant’s failure to appear. The Court stated, “It is axiomatic that, as the time period between entry of the forfeiture and the sending of notice thereof increases, the surety’s chances of tracking down the defendant are progressively diminished.”
In Safety National Casualty Corp. v. State, 986 So.2d 802 (La.App. 2008) the defendant appeared and eventually pled guilty, but he failed to appear for sentencing. The court issued a bench warrant and, almost two months later, signed a judgment of bond forfeiture. The clerk mailed notice of the bond forfeiture shortly after the written order of forfeiture. The surety did not appeal the judgment and did not assert defenses by summary proceedings within 60 days of the date the notice was mailed. The third avenue available to it to obtain relief from the judgment was to file a civil action asserting nullity of the judgment. Such a nullity action is available if the judgment was obtained by fraud or ill practice. Here, the Court found no evidence of fraud or ill practice. The surety merely failed to avail itself of its statutory remedies. Thus, even though the bond should not have extended beyond entry of the guilty plea without the surety’s consent (La. C. Cr. P. Art. 326(B)), the Court did not reach the merits of the surety’s arguments.
The surety also argued that the notice of forfeiture was not timely mailed. The notice had to be mailed within 60 days. There were disputes over what started the 60 days and when the notice was actually mailed. The Court pointed out that in an earlier case it held that the 60 days started from entry of the order not the defendant’s failure to appear, but it did not reach that issue because the clerk’s affidavit of mailing indicated the notice was mailed within 60 days of the nonappearance. The surety argued that the date in the affidavit was wrong based on a postmark on the envelop for the copy sent to the defendant, which was five days later and past expiration of the 60 day period. The Court found no evidence to support the surety’s argument that the notice to it was mailed at the same time as the notice to the defendant, and the surety admittedly received the notice and knew of the forfeiture. The Court affirmed the trial court’s dismissal of the surety’s petition to nullify the judgment.
In State v. White, 996 So.2d 448 (La.App. 2008) the court file showed two names for the defendant, and it was unclear which was correct and which was an alias. The surety received notice of the judgment of forfeiture showing one name but had the bond filed under the other name. However, the other information such as the power of attorney number and court file number were correct, and the court file contained both names. The bail agency may have called the court clerk to inquire about the forfeiture and been given the other name. The surety appealed the judgment, and the Court held that the notice was sufficient and any defect did not prejudice the surety or agent in their ability to locate the defendant or identify the obligation. The Court affirmed judgment forfeiting the bond.
In State v. De La Rosa, 997 So.2d 165 (La.App. 2008) the defendant traveled to Mexico and was not allowed to return for his required court appearance. The trial court forfeited the bond, and the surety appealed. The facts did not fit the justifications for nonappearance in La.R.S. §15:87 (physical disability or injury, incarceration, and service in the armed forces). Instead, the surety relied on a post-Hurricane Katrina statute, La.C.Cr.P., Art. 345(I), allowing relief if a fortuitous event prevented the defendant from appearing. The Court held that the inability to return from Mexico was not a fortuitous event as defined in the statute. The Court thought that when writing a bond for an alien, legal or otherwise, the possibility that he would return to his native country and not be allowed to return to the United States was foreseeable and part of the risk the surety took. The Court affirmed the trial court’s judgment denying the surety’s motion to set aside forfeiture of the bond.
In City of New Orleans v. Young, 2008 WL 4890887 (La.App. November 12, 2008) the trial court forfeited the bond when the defendant failed to appear. The Court of Appeals reversed because there was no transcript of the proceedings in the trial court. La. R.S. 15:85(1) required proper evidence of the bail contract, power of attorney and notices. Evidence meant more than just in the record of the case. Evidence has to be offered and admitted. The Court stated, “While the bail contract, power of attorney, and notice to the defendant were in the record, there is no indication the documents were properly and officially offered and (sic.) into evidence.”
In State v. Fall, 2008 WL 5247124 (La.App. December 16, 2008) the defendant’s arraignment was rescheduled and subpoenas issued to the defendant and the surety bond agent. The record did not include any return of service on the defendant. When he failed to appear, the bonds were forfeited and notice mailed to the surety and agent. Over a year later, the surety filed a motion to set aside the forfeitures. The trial court granted the motion, and the State appealed on the ground that the motion was filed too late. The Court of Appeals affirmed because judgment cannot be rendered against a defendant who was not served, and such a judgment can be annulled pursuant to La.C.C.P. Art. 2002(A)(2). The 60 day requirement of La.R.S. 15:85 applied only to assertion of defenses to a forfeiture, not to a surety’s action to annual a forfeiture judgment for vices of form under Art. 2002.
In State v. Bell, 2008 WL 5377644 (La.App. December 23, 2008) the defendant was served with a summons to appear at a pretrial and trial, but he failed to appear on either date. The court forfeited the bond on August 5, 2005. The defendant was arrested in Texas on May 3, 2006 and extradited to Louisiana on May 16. The surety did not appeal the judgment of forfeiture but moved on January 28, 2008, to set it aside. The surety argued that the judgment was based on the defendant’s failure to appear for the pretrial conference, which he had no legal obligation to attend, and, in the alternative, that it was entitled to remission of the bond forfeiture upon payment of 10% of the bond amount pursuant to La.R.S. 15:85(10)(b)(ii).
The court held that the surety did not timely challenge the judgment based on the first argument and, even if considered on its merits, the argument failed because the court’s summons required the defendant’s attendance at the pretrial. Even if the minutes of the prior hearing did not include an instruction to the defendant to appear at the pretrial, the summons instructed him to appear. He also failed to appear for trial, and the forfeiture was based on both failures. On the second argument, the court did not reach the issue of whether the defendant’s arrest in Texas was a “surrender” pursuant to §15:85(10)(b)(ii) or whether the nine month period of the section applied because there was no dispute that 10% of the amount of the bond was not tendered within the nine month period. The court interpreted the statute to require “the surrender of the defendant and the payment in cash of ten percent of the face amount of the bond within the nine-month period.” Since the record did not show a timely tender, the surety could not rely on §15:85(10)(b)(ii). A concurring opinion agreed with the result but thought that the statute did not apply anyway because the criminal case was filed before the statute was amended on August 15, 2006.
Louisiana Case Law 2007
State v. Weaver, 951 So.2d 421 (La.App. 2007) reversed the trial court’s order setting aside forfeiture of the bond and remanded the case for the court to make specific factual findings. The defendant failed to appear, and the issue was whether the State had given her satisfactory notice of the hearing. On the bond she provided a street address but no apartment number. She was served several times at that address although a number of other attempts failed. At some point someone put an apartment on the subpoena, and the sheriff’s return said she was not at the address. The State can rely on the address the defendant provides, and the defendant has a duty to update it. On the other hand, if the State added an incorrect apartment number and that caused the Sheriff’s service to fail, then the bond would not be forfeited because the State did not provide notice of the hearing. The Court remanded the case for an evidentiary hearing on these issues.
In State v. Coker, 951 So.2d 1255 (La.App. 2007) the surety filed a motion to set aside forfeiture of its bond within six months of the date the clerk mailed the notice of forfeiture. After the six month period had expired, the trial court denied the motion. Instead of appealing, the surety filed a “Motion to Reconsider Ruling,” which the trial court granted. The State appealed on the ground that statutes and rules applicable to bail in a criminal case do not provide for a “Motion to Reconsider Ruling,” and the forfeiture judgment became final when no timely appeal was taken. The Court of Appeals agreed and reversed the trial court.
State v. Hill, 953 So.2d 849 (La.App. 2007) held that the surety had six months from the date notice of the judgment of forfeiture was mailed to move to set the forfeiture aside. The State argued that a summary proceeding in the criminal case had to be filed within 60 days, but the Court found that the case was controlled by the six month period in La. Code of Criminal Procedure Art. 345(D) rather than the 60 day period in La. R.S. 15:85(5). The Court thought that the shorter period was for summary proceedings to set the forfeiture aside for procedural deficiencies that rendered it a nullity, whereas here the surety argued that the defendant was incarcerated in California during the six month recovery period and could have been returned but for the Sheriff’s delay in entering the warrant in the NCIC database. The Court found that there was no delay, and although the motion was timely it was properly denied on its merits.
In City of New Orleans v. Young, 967 So.2d 539 (La.App. 2007) the surety on an appearance bond for the defendant asked the trial court to grant a suspensive appeal of its order forfeiting the bond. The trial court refused. The Court of Appeals held that the surety was entitled as a matter of law to the suspensive appeal and remanded the case with directions that the trial court grant the surety’s motion and enter an order for a suspensive appeal.
In State v. Whitehouse, 2007 WL 3228506 (La.App. November 2, 2007) the trial court denied the surety’s request to be released from any obligation as to future appearances by the defendant. The surety appealed, but in the meantime the defendant pled guilty and was sentenced. Since this discharged the surety as a matter of law, the Court of Appeal dismissed the appeal.
Louisiana Case Law 2006
In City of Bossier City v. Miller, 920 So.2d 408 (La.App. 2006) the defendant was released and later pled guilty and was fined $1,000. She forfeited the $1,000 posted for her release to pay the fine. The paperwork for her release showed “cash” as the surety and gave no indication that anyone served as her surety. Someone else paid the $1,000, however, and he objected to forfeiture of his money to pay the defendant’s fine. The court noted that a contract of suretyship must be in writing and that there was no writing indicating that the appellant was surety for the defendant. The court affirmed dismissal of his claim.
In State v. McLaurin, 2006 WL 782849 (La.App. March 28, 2006) the bond contained an appearance date, but the date was changed. The court attempted unsuccessfully to give the defendant notice of the new date by personal service, but did not give the surety notice. The defendant appeared on the original date and filled out a form to change her address. The record does not show whether she was given notice of the new date, but she failed to appear on the new date, and the court forfeited the bond and denied the surety’s motion to set the forfeiture aside. The Court of Appeals reversed because the surety was not given notice of the new appearance date as required by La.C.Cr.P. art. 344. The Court held, “a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond.” The Court did not reach the problem with notice to the defendant, but expressed skepticism that it would have supported a forfeiture judgment.
In State v. Ramee, 930 So.2d 1092 (La.App. 2006) the defendant failed to appear and the bond was forfeited. Several months later, but within the six month appearance period, the defendant was incarcerated for two days in another Parish. The Court held that La.C.Cr.P. 345 did not provide relief because the defendant was released. The Court interpreted section 345 to apply only if the surety was unable to return the defendant because the defendant was incarcerated and was still incarcerated. Presumably the Court meant still incarcerated at the time the surety’s motion was filed. The Court noted that La.R.S. 15:87 provides relief to the surety if the defendant’s original failure to appear was because of incarceration on the appearance date. The Court disagreed with the trial court that denied the surety’s motion to set aside the forfeiture because the surety did not tender transportation costs pursuant to section 345 but nevertheless affirmed the result because section 345 did not apply at all.
In Louisiana Bail Bonds, Inc. v. State, 930 So.2d 1113 (La.App. 2006) the defendant failed to appear, and the court issued a bench warrant and forfeited the bond. No written order of forfeiture was signed, however, and no notice of forfeiture was mailed. Several months later, the court recalled the bench warrant and set aside the forfeiture. The defendant again failed to appear, and the bond was forfeited properly and notice sent to the surety.
The surety and bail agent argued that the bond was released because no notice was mailed within 60 days of the original failure to appear as required by La. R.S. 15:85. The Court held that the notice requirement applied only if there was a written forfeiture order. Since in this case there was no written order for the first forfeiture, the 60 day period to mail notice did not apply and the trial court was free to set aside the forfeiture and start over. The Court affirmed judgment against the surety.
Bartholomew v. Bail Bonds Unlimited, Inc., 2006 WL 2524167 (E.D.La. August 30, 2006) asserted various claims based on an alleged conspiracy to monopolize the bail bond business in Jefferson Parrish. The court granted a surety company’s motion to dismiss the claims subject to a one year limitations period because the plaintiff should have known of her claims in 2003 when the first criminal charges were brought against one of the alleged conspirators. The court otherwise found that the amended complaint survived the surety’s motion to dismiss for failure to state a claim.
Ranger Insurance Co. v. State, 941 So.2d 182 and 191 (La.App. October 11, 2006) affirmed the trial court in two consolidated cases in which the surety argued that the court commissioner did not have authority to sign judgments of bond forfeiture. In the first case, the surety prevailed on another argument and the state did not appeal, so the Court of Appeals refused to consider the case. In the second case, the Court held that the commissioner’s judgment was valid under the de facto officer doctrine. Only an elected judge had authority to sign the judgment, and the commissioner was an appointed official not an elected judge, but under the de facto officer doctrine the officer’s actions are valid and binding on the parties until the officer’s authority or status is attacked. This appears to mean that in the future commissioners will not be able to sign bail bond forfeiture judgments but that ones already signed are valid.
In State v. Williams, 945 So.2d 106 (La.App. 2006) the defendant failed to appear and a forfeiture was entered five months before Hurricane Katrina. The six month period to surrender the defendant, therefore, was interrupted by the Hurricane. The Court held that a series of Executive Orders, which were ratified by the Legislature, applied to the six month period of La. C.Cr. P. Art. 345. While the appeal was pending, the Legislature passed Act 466 of 2006 that, among other things, authorized discretionary relief from judgments of bail bond forfeiture if the hurricane related events made it impossible for the surety to perform under the bond or return the fugitive. Even though the trial court judgment in this case predated the remedial legislation, the Court held that the legislation applied and formed an alternative basis for relief. The Court vacated the judgment denying the surety’s motion to set aside the forfeiture and remanded the case to the trail court to consider the motion under the standards set forth in the remedial legislation.
Louisiana Case Law 2005
State v. Rivera, 894 So.2d 496 (La. App. 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant was a native of Mexico and was voluntarily deported immediately after his release. He did not appear for arraignment and the bond was forfeited. Notice of forfeiture was mailed to the surety and agent. Deportation is not one of the grounds for non-forfeiture enumerated in La. R.S. §15:87 (which can be raised within six months of mailing the notice), and therefore the surety could proceed only by summary proceeding in the criminal case under La. R.S. §15:85. However, such summary proceedings must be brought within the 60-day period following mailing of the notice, and the surety’s motion was untimely.
In State v. Gibson, 2005 WL 675664 (La. App. March 24, 2005) the clerk mailed notice of the judgment of bond forfeiture to the surety and to the defendant, but the envelop to the defendant had the wrong zip code. The rest of the address was correct, and there was no allegation that the notice was not received or that the surety was prejudiced by the error. The surety moved to set aside the judgment, which was denied, and the surety appealed. The Court of appeals affirmed. The statute required mailing to the address on the bond, but does not define address. The court suggests, over a dissent, that the zip code should not be considered part of the address, but the judges agreed that the intent of the statute is to provide notice and that in this instance notice was provided and no prejudice suffered, therefore, in this instance, failure to include the correct zip code did not render the address invalid.
United States v. Green, 2005 WL 1400426 (E.D. La. June 6, 2005) charged a Louisiana district court judge in Jefferson Parish with accepting, and Bail Bonds Unlimited and Norman Bowley with giving, bribes in return for various favors related to bail bonds.
Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.
Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.
In State v. Melancon, 925 So.2d 552 (La. App. 2005) the defendant failed to appear and the court issued a bench warrant and signed a judgment of bond forfeiture. Some time later the defendant went with a representative of the surety to the sheriff’s office. Upon being informed by the sheriff that she was in his office, the court recalled the warrant. The Court held that her appearance at the sheriff’s office was an “appearance” under La. R.S. 15:85 (that is, “appearance” does not mean just an appearance in court) and the surety was entitled to relief from the forfeiture judgment. [Published].
State v. Davis, 923 So.2d 744 (La. App. 2005) affirmed judgment of forfeiture against the surety. The Court rejected the surety’s argument that statutory notice of the court appearance was not given to the defendant. Notice was sent by certified mail and attempted personal delivery to the address the defendant gave on the bond. It turned out to be a vacant house, and the surety argued that actual notice was required. The Court held that the defendant had the obligation to file any change of address, and that notice sent to the address of record in the case was sufficient.
Williams v. City of Jeanerette, 2005 WL 3113024 (W.D.La. November 21, 2005) denied the surety’s motion for summary judgment in a suit based on alleged torts of a bounty hunter. The surety argued that the bounty hunter was an independent contractor, but the court held that there were genuine issues of fact.
In State v. Murphy, 917 So.2d 769 (La. App. 2005) the defendant failed to appear and the trial court ordered the bond forfeited and a bench warrant issued, but no judgment of forfeiture was signed. Five months later, the forfeiture was set aside, the warrant recalled, and the defendant ordered to appear on a new date. He again did not appear, and this time a judgment forfeiting the bond was signed and timely notice mailed to the surety and bail agent. The surety argued that because notice was not mailed within 60 days of the original failure to appear and forfeiture, the bond was released. The Court held that the 60 days in which the clerk must mail notice of forfeiture runs from the date of nonappearance that results in a signed forfeiture order. If there is no signed judgment, even though there was a failure to appear, there is no final judgment and no duty to mail the notice. The Court affirmed the trial court’s denial of the surety and agent’s motion to set aside the forfeiture judgment.
In State v. Wilson, 917 So.2d 719 (La. App. 2005) Bossier City charged the defendant with theft, and he was ordered to appear in the Bossier City Court. The obligee of the Bond was the Mayor of Bossier City, and the power of attorney stated that it was not transferable to another court except for change of venue under La. C. Cr. P. Art. 626. The Sheriff sent a letter to the defendant telling him to appear to answer the theft charge in the Bossier Parish District Court. The Court held that the bond was discharged because the change of venue procedures of La. C. Cr. P. Articles 621 – 627 were not followed and the power of attorney clearly limited the bond to appearance in the Bossier City court. The Court rejected the state’s argument that the power of attorney was just an agreement between the surety and agent and stated, “the power of attorney is a critical and mandated portion of the bail bonding agreement. It is to be viewed and read as part of the total bail bond agreement.”
Louisiana Case Law 2004
In State v. Futch, 2004 WL 626204 (La. App. March 31 2004) the surety moved to set aside a bond forfeiture because the record did not show that the defendant was given notice of the date he was to appear. The Court affirmed denial of the motion because Art. 344 of the La. Code of Criminal Procedure requires notice after the initial appearance only to the surety, agent or bondsman not to the defendant. Since notice was given to the surety, the forfeiture was correct.
In State v. Ainsworth, 2004 WL 1459356 (La. App. June 29, 2004) the surety had two grounds to set aside forfeiture of the defendant’s bond. The surety argued that the state did not give the defendant the required notice of the appearance date and that the defendant was incarcerated in another jurisdiction on the appearance date. The Court held that under Louisiana statutes some defenses must be raised within 60 days and some within six months. The alleged lack of notice is a 60-day defense, and it was first raised by motion filed more than 60 days after the notice of forfeiture was mailed. In addition to being untimely, the defense failed on its merits because the state tried to serve notice of the appearance date on the defendant at the false address he gave.
The incarceration is a six-month defense, but the surety did not raise it in its motion or in any amended motion. It was first raised the morning of the hearing which was more than six months after the date the notice of forfeiture was mailed. The statute also requires an affidavit from a public official that the defendant was incarcerated, and the surety provided only an unsworn letter. The Court, therefore, affirmed the trial court’s denial of the surety’s motion to set aside the forfeiture.
Reading between the lines of this case, it appears that the way things have routinely been done has not complied with the applicable statutes and the Court of Appeals is giving notice that it will require strict compliance in the future. [Published].
In State v. Harris, 2004 WL 2072040 (La. App. September 17, 2004) the defendant failed to appear and the bail agent asked the Sheriff to enter the resulting bench warrant in the National Crime Information Center Registry and tendered the $25 fee. The Sheriff refused to enter the warrant, and when the bail agent’s representatives later seized the defendant in another state the local police refused to hold him because there was no confirmation of the warrant in the Registry. The court held that the bond was exonerated pursuant to Art. 345G of the La. Code of Crim. Proc. The court said that it relied on the fact that the $25 was accepted and did not express an opinion on whether the Sheriff could have refused the fee and not entered the warrant. A concurring opinion, however, argues that the Sheriff was obligated to accept the fee and enter the warrant and to refuse would border on malfeasance. Under the terms of the cited statute, it appears that mere refusal to enter the warrant should discharge the surety, and the fact that the defendant was later located, and released because of the Sheriff’s failure, was not essential to the holding.
State v. Timberlake, 2004 WL 2290500 (La. App. October 12, 2004) refused to consider the merits of the surety’s motion to set aside forfeiture of its bond because the motion was filed after the expiration of six months from the date notice of the judgment of bond forfeiture was mailed. The motion was, therefore, untimely, pursuant to La. R.S. §15:85. The Court also noted several other avenues of relief that the surety failed to pursue.
State v. Campbell, 889 So.2d 1030 (La. App. 2004) refused to consider the merits of the surety’s appeal from the forfeiture of two bonds. The surety argued that the defendant was not served with notice of the court date upon which she failed to appear and that she was incarcerated in another Parish within six months of the mailing of the notice of bond forfeiture. The surety’s original motion to set aside the forfeiture was based on only the lack of proper notice defense. The Court refused to consider it because it was not filed within 60 days of the mailing of the notice of bond forfeiture as required by La. R.S. §15:85(5). That statute allows six months to assert a defense based on incarceration of the defendant, but the surety did not raise that defense until the hearing on its motion, which was after expiration of the six month period.
State v. McCoy, 889 So.2d 1026 (La. App. 2004) reversed a judgment vacating a bond forfeiture. La. C. Cr. P. Art. 345 allows the surety six months from the mailing of notice of bond forfeiture in which to surrender the defendant. The surety moved to extend the period, the state withdrew its opposition to the motion, and the trial court granted an extension. The surety surrendered the defendant one day after expiration of the extended period. The Court of Appeals held that the trial court did not have discretion to extend the surrender period, and even if the state’s acquiescence legitimized the extension, the surrender was not within the extended period. In addition, the various statutory procedures to obtain relief from the forfeiture were not followed.
In State v. Turner, 2004 WL 2806466 (La. App. December 8, 2004) the criminal falsely identified himself as his younger brother. The Sheriff’s office did nothing to verify his identity. The bond was issued in the name of the brother in reliance on the false identification. The defendant failed to appear and a warrant was issued in the brother’s name. Eventually, the mistake was discovered and corrected. The surety moved to set aside the forfeiture more than six months after the notice of forfeiture was mailed. Nevertheless, both the trial court and the Court of Appeals held that the surety should not be penalized for failing to produce the defendant because that failure was caused by reasonable reliance on false information provided by the state.