Beth's Bail Bonds, Inc. v. State of Arkansas , 2015 Ark. App. 660 ( 2015 )

Cite as 2015 Ark. App. 660
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-951
OPINION DELIVERED NOVEMBER 18, 2015
BETH’S BAIL BONDS, INC. APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, FIFTH
DIVISION
[NOS. 60CR-13-2844, 60CV-14-1547]
V.
HONORABLE WENDELL GRIFFEN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Beth’s Bail Bonds, Inc. (BBB), appeals the Pulaski County Circuit Court’s bond-
forfeiture judgment filed April 17, 2014, and the July 11, 2014 order denying BBB’s motion
to set aside the judgment. On appeal, the bonding company contends that (1) the circuit
court was without jurisdiction to enter a judgment; (2) the county attorney’s office had no
authority to demand judgment on behalf of the State; and (3) the circuit court abused its
discretion by not setting aside the bond-forfeiture judgment under Arkansas Rule of Civil
Procedure 60 (2014). We affirm.
I. Statement of Facts
In February 2013, BBB wrote a bail bond benefiting Robert Jeffrey Ford in the
amount of $2600 after Ford had been charged with reckless burning. When Ford failed to
appear for his plea-and-arraignment hearing on October 24, 2013, BBB was notified with a
Cite as 2015 Ark. App. 660
summons to appear on January 9, 2014, to show cause why the bail bond should not be
forfeited. The show-cause hearing was reset by agreement to March 10, 2014. On that date,
it was reset on BBB’s request for April 10, 2014. At that hearing, BBB requested investigator
expenses. The circuit court ruled that the expenses were not to be allowed and entered a
bond-forfeiture judgment for $2600 on April 17, 2014. On June 11, 2014, BBB filed a
motion to set aside forfeiture judgment, citing Arkansas Code Annotated section 16-84-207
(Supp. 2013) (providing for exoneration of the amount of the surety’s liability under certain
conditions and at the circuit court’s discretion).
At the hearing on BBB’s motion to set aside the judgment, David Viele, an agent with
BBB, testified that, during the period between January and April 2014, BBB’s license had
been suspended by the Arkansas Bail Bond Licensing Board (Board) for issues unrelated to this
case. He said that, during that period, BBB could not apprehend people, but could only
appear in court pursuant to a summons and perform collections on outstanding bills. BBB’s
license was reinstated on April 3, 2014, by consent order between BBB and the Board.
Viele testified that he arrested Ford on May 14, 2014, and surrendered him to Pulaski
County. Viele said that he had hired a private investigator, who located Ford living in the
woods on his grandfather’s property. Viele claimed that, even though BBB had a judgment
entered against it, his obligation as a licensed bail bondsman was to apprehend a defendant,
regardless of the timing. Viele asked the circuit court to set aside the judgment under Rule
60 because Ford had been placed in custody. He further testified that the judgment would
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be a hardship on the bonding company. On cross-examination, Viele admitted that Ford
failed to appear in October 2013.
Larry Peters, executive director of the Board, testified that the Board entered into a
consent order with BBB, but he did not agree with the statement in the order that the
bonding company could not perform manhunts and/or pickups and could not appear in court
while its license was suspended. He said that it was his opinion that once a bond is issued, the
matter becomes a civil situation between the bonding company and the judge. He testified
that, if the bonding company had the proper paperwork from the court, it should continue
to pick up defendants and bring them into court during suspensions. He claimed that the only
thing the bonding company could not do was issue new bonds. He stated that, even when
licenses are revoked, the bonding companies regularly continue to search for defendants and
take them into court. He said that he never told BBB it could not appear in court or look
for defendants and that, when he polled his staff, they all said that they did not do so either.
At the close of the hearing, BBB argued that the Pulaski County Attorney’s Office
should not be acting on behalf of the State as it related to bail-bond licensing or bail-bond-
forfeiture issues in criminal cases. BBB claimed that the prosecuting attorney should be
litigating the issue. The county attorney responded that BBB’s argument was a collateral
attack on a bond forfeiture and that a proper claim should be filed in a separate civil action.
The county attorney claimed that a bond forfeiture is a civil judgment and that the issue was
moot.
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BBB then argued that, pursuant to Rule 60, the circuit court had discretion to set aside
a judgment within ninety days. BBB claimed that the defendant was brought into custody
by the bonding company, surrendered after the judgment had been entered against it. BBB
stated that, ultimately, Ford’s case was dismissed based on a speedy-trial violation, and it
argued that the judgment would be a hardship on the company.
The circuit court denied the motion, ruling that the $2600 judgment would not be set
aside. BBB filed a notice of appeal, claiming to appeal both the April 17, 2014 bond-
forfeiture judgment and the July 11, 2014 order denying BBB’s motion to set it aside. This
appeal followed.
II. Jurisdiction
BBB argues that the circuit court was without jurisdiction to enter a judgment because
the summons to it was defective. It cites Arkansas Rule of Civil Procedure 12(h)(2) (2014)
(The defense of lack of jurisdiction over the subject matter is never waived and may be raised
at any time.), and Dobbs v. Discover Bank, 2012 Ark. App. 678, 425 S.W.3d 50 (Valid service
of process is necessary to give a court jurisdiction over a defendant.).
BBB contends that the summons was defective because (1) it failed to state “the sum
specified in the bail bond on account of the forfeiture,” as required by Arkansas Code
Annotated section 16-84-207(b)(2)(B); and (2) the summons was not the requisite model
adopted and appended to Rule 9.5 (2014) of the Arkansas Rules of Criminal Procedure. BBB
complains that the summons did not state the name and address of its attorney, thereby falling
short of strict compliance as required under Arkansas Rule of Civil Procedure 4(b) (2014).
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Further, the summons did not advise BBB whether it was to file a pleading or the result of
the failure to file a pleading. BBB also complains that the summons was not returnable or
executed “as if the case were a civil action.” Ark. Code Ann. § 16-84-207(e)(2). Thus, BBB
argues that, because strict compliance was lacking, the circuit court did not have jurisdiction
over BBB to enter the bond-forfeiture judgment.
Regarding jurisdiction, the Arkansas Supreme Court held as follows:
A timely notice of appeal is essential to this court obtaining jurisdiction. Jewell v.
Fletcher, 2012 Ark. 132; Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). The
failure to file a timely notice of appeal deprives the appellate court of jurisdiction.
Jefferson v. Ark. Dep’t of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004). Arkansas
Rule of Appellate Procedure-Civil 4 states that “a notice of appeal shall be filed within
thirty (30) days from the entry of the judgment, decree or order appealed from.” Ark.
R. App. P.-Civ. 4(a) (2014). The timely filing of certain motions may extend the time
for filing a notice of appeal. Ark. R. App. P.-Civ. 4(a), (b). The only motions that will
extend the time are a motion for judgment notwithstanding the verdict under Rule
50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings
of fact or to make additional findings pursuant to Rule 52(b), a motion for new trial
under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made
no later than ten days after entry of the judgment. Ark. R. App.-Civ. P. 4(b)(1); Jewell,
2012 Ark. 132. If a timely motion is filed, the notice of appeal shall be filed within
thirty days of the order disposing of the last motion outstanding. Ark. R. App. P.-Civ.
4(b)(1). If the court neither grants nor denies the motion within thirty days of its filing,
the motion shall be deemed denied as of the thirtieth day, and the notice of appeal
must be filed within thirty days from that date. Ark. R. App. P.-Civ. 4(b)(1).
Tubbs v. Hobbs, 2015 Ark. 99, at 2.
We hold that because BBB did not file its notice of appeal until August 7, 2014, this
court does not have jurisdiction to review the order of bail-bond forfeiture, which was filed
on April 17, 2014. The motion to set aside the order was based on Arkansas Code Annotated
section 16-84-207, which allows the bonding company to seek exoneration under certain
conditions. However, the statute does not toll the time to file a notice of appeal, as would
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other postjudgment motions. See Tubbs, supra. Therefore, we may not address this point on
appeal, as it attacks the underlying bond-forfeiture judgment and not the order denying the
motion to set the forfeiture aside.
III. Pulaski County Attorney
BBB contends that the Pulaski County Attorney’s Office had no authority to appear
and demand judgment on behalf of the State of Arkansas. BBB argues that the county is not
a party, and that this case is a criminal action brought in the name of the State. Further, BBB
claims that the circuit court lacked authority to deny BBB’s motion to set aside bond
forfeiture “which divested the State of Arkansas of its right to bail bond forfeiture judgments,
its right to appear and represent the State, and due process.” BBB argues that bail-bond
forfeitures are criminal proceedings. BBB claims that, to be a civil action, a separate filing
must be made, citing Arkansas Rule of Criminal Procedure 3(a) (2014). BBB contends that
the prosecutor, not the county attorney, shall prosecute criminal actions under Amendment
21, section 1 of the Arkansas Constitution. BBB accuses Pulaski County of unconstitutionally
diverting bail-bond-forfeiture monies to the county treasury. BBB complains that a civil case
number was added after judgment had been obtained, which violates Rule 3(a).
BBB’s complaint regarding the county attorney’s participation in this matter was not
made until its motion to set aside was filed. To preserve a point for appeal, an objection must
be made at the first opportunity, and a party cannot obtain relief by raising an argument for
the first time in a postjudgment motion. Davis v. Ark. Blue Cross & Blue Shield, 2010 Ark.
App. 348, at 5.
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IV. Arkansas Rule of Civil Procedure 60
BBB argues that the circuit court abused its discretion by not setting aside the bond-
forfeiture judgment under Rule 60(a) of the Arkansas Rules of Civil Procedure, which allows
a court to set aside a judgment within ninety days of the judgment:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage
of justice, the court may modify or vacate a judgment, order or decree on motion of
the court or any party, with prior notice to all parties, within ninety days of its having
been filed with the clerk.
The only limitation on the exercise of power under Rule 60(a) is addressed to the sound
discretion of the trial court. Triple T Farms P’ship v. Union Bank & Trust Co., 2015 Ark. App.
174, at 3, 458 S.W.3d 258, 260.
BBB argues that it apprehended Ford and surrendered him to the court, but that the
case was ultimately dismissed for lack of a speedy trial. BBB contends that it was not at fault
for failing to give notice to Ford because it was the circuit court’s failure. BBB also claims
that the Pulaski County Attorney’s Office had no authority to act and appear in this matter;
that BBB was suspended during the time period in which it was charged to find Ford; that
the circuit court judge stated, “It will stand and if the $2600 judgment is going to put this
company out of business, it’s just too bad, but the judgment will stand”; and the summons
was defective. Based on these reasons, BBB claims that the trial court abused its discretion
in refusing to set aside the judgment.
The State contends that BBB never argued below that Ford’s failure to appear was the
circuit court’s fault, that summons was defective, or that the circuit court judge remarked that
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it was too bad if BBB were to be put out of business. We agree that these arguments cannot
be considered on appeal. Buddy York Bail Bonds, Inc. v. State, 2012 Ark. App. 252.
The State asserts that the arguments regarding the county attorney’s office and BBB’s
suspension do not demonstrate that the circuit court abused its discretion by denying the
motion. Once Ford failed to appear, the circuit court had the discretion to order complete
forfeiture absent a recognized excuse, not presented or alleged here. M&M Bonding Co. v.
State, 59 Ark. App. 228, 955 S.W.2d 521 (1997). Because there was no abuse of discretion
in the circuit court’s decision, we affirm.
Affirmed.
ABRAMSON and Kinard, JJ., agree.
Charles D. Hancock, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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