Civil Practice – Bond Forfeiture – Failure to Appear

The trial court erred by denying 1st Atlantic Surety Company’s motion to set aside its bond forfeiture.

We reversed and remanded.

In 2018, 1st Atlantic Surety Company (ASC) posted a $35,000 bail bond for defendant. In 2023, defendant failed to appear for court, so the trial court entered a bond-forfeiture notice. In 2023, ASC filed a motion to set aside the bond forfeiture. The motion included several copies of orders for defendant’s arrest. The Lenoir County School Board filed an objection to ASC’s motion. The objection included a notice of hearing, which incorrectly listed the hearing date as August 2, 2023; the hearing date was actually August 30, 2023. In an affidavit attached to its motion to dismiss this appeal, the Board asserted that it remedied its mistake by mailing ASC a corrected notice of hearing. On August 30, 2023, the trial court heard this matter, but ASC did not appear. On September 28, 2023, the trial court entered an order denying ASC’s motion to set aside. The trial court found that the Board properly mailed copies of the objection and notice of hearing; all parties were properly served; and ASC did not appear at the hearing. The trial court concluded by denying ASC’s motion to set aside.

The issue on appeal was whether the trial court erred by denying ASC’s motion to set aside its bond forfeiture. ASC argued that the trial court erred by denying its motion to set aside because ASC complied with subsection 15A-544.5(b)(4). See N.C. Gen. Stat. § 15A-544.5(b)(4). On the other hand, the Board argued that the trial court correctly denied ASC’s motion to set aside because ASC failed to appear at the motion hearing, and alternatively, the Board argued that the trial court correctly denied ASC’s motion to set aside because the motion was improperly signed. We agreed with ASC. First, nothing in the record—including the Board’s additional narrative of the motion hearing—shows that the Board contested the validity of ASC’s motion signature. Therefore, any arguments concerning ASC’s motion signature are unpreserved, and we will not consider them. Second, the Order does not specify why the trial court denied ASC’s motion. We can reasonably infer, however, that the trial court denied ASC’s motion because ASC failed to appear at the motion hearing. Although it was in ASC’s best interests to appear at the hearing—nothing compelled ASC to do so. Moreover, ASC’s motion cited a valid reason to set aside the forfeiture, and ASC attached copies of defendant’s arrest orders to its motion. Therefore, without any contradictory evidence from the Board, the trial court should have set aside the forfeiture.

Reversed and remanded.

State v. Leon Maye (Lawyers’ Weekly No. 011-184-24, 9 pp.) (Jeff Carpenter, J.) Appealed from Lenoir County Superior Court (Imelda J. Pate, J.) Practus, LLP, by M. Brad Hill, for Other-appellant 1st Atlantic Surety Company; Mintz Law Firm, PLLC, by Rudolph I. Mintz, III, for Other-appellee Lenoir County Board of Education; Tharrington Smith LLP, by Stephen G. Rawson, for Other-appellee Lenoir County Board of Education. North Carolina Court of Appeals