Cite as 2022 Ark. App. 157 ARKANSAS COURT OF APPEALS
J.E. BONDING, INC.
V.
STATE OF ARKANSAS
DIVISION III No. CV-21-49
APPELLANT
APPELLEE
Opinion Delivered April 6, 2022 APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-20-185]
HONORABLE MARCIA R. HEARNSBERGER JUDGE
AFFIRMED
MIKE MURPHY, Judge Appellant J.E. Bonding, Inc., appeals from the Garland County Circuit Court order denying its motion to set aside judgment. On appeal, J.E. Bonding argues that the summons failed to comply with Arkansas law and that the judgment should have been set aside pursuant to Arkansas Rules of Civil Procedure 59 and 60. We affirm. On February 11, 2020, in case No. 26CR-20-185, J.E. Bonding provided a $65,000 bail bond on the defendant’s behalf. After a couple of continuances due to the COVID-19 pandemic, the case was set for plea and arraignment on June 3. The defendant failed to appear, and on June 15, the circuit court entered an order for issuance of arrest warrant and summons/order for J.E. Bonding to appear at a bond-forfeiture hearing set for September 8. It was served on J.E. Bonding by certified mail, return receipt requested. According to the return receipt, the summons/order was delivered on June 22. No bondsman or attorney
appeared at the September 8 hearing, and the circuit court entered an order on September 10 declaring the bond forfeited. On September 20, J.E. Bonding moved to set aside the judgment against the surety pursuant to Arkansas Rules of Civil Procedure 59 and 60. The motion stated that the defendant was incarcerated in the Arkansas Department of Correction (ADC) prior to the time the forfeiture hearing was held. To support this, J.E. Bonding attached an exhibit printed from the ADC’s website entitled “ADC Inmate Search” showing that the defendant was sentenced for crimes in Hot Spring County on June 4 and that his initial receipt date was June 12. The motion also alleged that a J.E. Bonding agent mistakenly believed that the hearing was set in the Hot Spring County Circuit Court rather than the Garland County Circuit Court, confusing the county circuit court with the name of the city of Hot Springs, which is in Garland County. The motion further stated, “[T]his confusion was compounded and reinforced by a set of final disposition sheets filed with the clerk on June 10. These final disposition sheets caused JE Bonding to believe that the defendant’s incarceration was a result of this court’s actions.” Additionally, the motion stated, “J.E. did not attend the bond forfeiture hearing because it believed the forfeiture was going to be dismissed because [the defendant] was in the ADC.” The motion further provided that the summons issued was defective because it failed to comply with Arkansas law and that the circuit court therefore never acquired jurisdiction over J.E. Bonding to forfeit the bond. Last, it alleged that the forfeiture order was a manifest injustice because Hughes “is not at large but in the custody of the state” and that “[h]e was in such custody prior to the forfeiture hearing.” In the incorporated brief it stated,
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J.E. Bonding, Inc., has sound evidence and argument for exonerating or reducing its liability under the bond and this is a meritorious defense. This defense is that the defendant was in the custody of the State at the time of the hearing. As such, J.E. had fully complied with its requirement to secure the defendant for trial.
On October 13, the circuit court conducted a hearing on the motion. J.E. Bonding’s counsel explained that it was the bonding agent’s fault and not the fault of J.E. Bonding, the company. He did acknowledge that J.E. Bonding is ultimately responsible. The court stated, That’s a shame. That’s their problem, not mine. If they can’t hire the right people who understand what they’re doing, then I can’t have them making bonds in this Court. So you can keep your bond and I’ll dismiss the bond forfeiture, but he will not make bonds in this Court anymore.
J.E. Bonding also asked the court to consider that the underlying defendant was incarcerated. The court stated that was not a sufficient excuse to simply not attend the hearing. It further stated, “If they want to take their responsibility seriously, pay their bond when they make a mistake and keep on going and we’ll learn from our mistakes, then that’s fine with me. Otherwise, I will allow them off the bond but we’re not doing business anymore.” J.E. Bonding advised that it would notify the court within five days of its decision. On October 18, J.E. Bonding’s counsel notified the circuit court by letter that it wished for the court to set aside the forfeiture order but that it would not agree to no longer write bonds in Garland County. The court did not enter an order on the motion; thus, it was deemed denied on October 20. J.E. Bonding filed a notice of appeal on November 4 from the bond-forfeiture order entered on September 10 and the deemed denial of its motion to set aside the judgment. On appeal, J.E. Bonding first argues that process was defective because the summons was not immediately issued pursuant to Arkansas Code Annotated section 16-84-
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207(b)(2)(B) (Supp. 2021). It asserts that default judgments are void due to defective process regardless of whether the defendant had actual knowledge of the pending lawsuit. Helena-W. Helena Pub. Sch. Dist. v. Shields, 2016 Ark. App. 312, at 4, 497 S.W.3d 202, 204. It further argues that to enter a default judgment, Arkansas Rule of Civil Procedure 55 requires a written application and three days prior notice before a default judgment can be entered, and that did not happen in this case. We are unable to reach the merits of these arguments on appeal, however, because the issues J.E. Bonding now raises are not properly preserved for appeal. Concerning the summons in J.E. Bonding’s motion to set aside the bond forfeiture, it made only a general argument—“In this case, statutory compliance was not met because the circuit clerk never issued a proper civil summons in that it wholly and completely failed to comply with Ark. R. Civ. P. 4.” It further made the following conclusory statement: “The summons issued to JE was defective because it failed to comply with Arkansas law. Because the summons was defective, this Court never acquired jurisdiction over JE to forfeit the bond.” The incorporated brief and the hearing also lack argument concerning the immediacy of the issuance of the summons per subdivision (b)(2)(B) of the statute. When an argument is not addressed to the circuit court, it is not preserved for appellate review. See Buddy York Bail Bonds, Inc. v. State, 2012 Ark. App. 252; see also Affordable Bail Bonds, Inc. v. State, 2015 Ark. App. 44. For its second point on appeal, J.E. Bonding alternatively argues that the court abused its discretion by failing to set aside the bond-forfeiture order pursuant to Arkansas Rule of
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Civil Procedure 60. It argues that the judgment entered by the circuit court was prohibited by Arkansas Code Annotated section 16-84-207(c)(1)(A). Arkansas Rule of Civil Procedure 60(a) provides that “[t]o correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or degree 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.” Arkansas Code Annotated section 16-84-207 governs bond forfeitures and states in pertinent part, (a) If a bail bond is granted by a judicial officer, it shall be conditioned on the defendant’s appearing for trial, surrendering in execution of the judgment, or appearing at any other time when his or her presence in circuit court may be lawfully required under Rule 9.5 or Rule 9.6 of the Arkansas Rules of Criminal Procedure, or any other rule.
(b)(1) If the defendant fails to appear at any time when the defendant’s presence is required under subsection (a) of this section, the circuit court shall enter this fact by written order or docket entry, adjudge the bail bond of the defendant or the money deposited in lieu thereof to be forfeited, and issue a warrant for the arrest of the defendant.
(2) The circuit clerk shall: (A) Notify the sheriff and each surety on the bail bond that the defendant should be surrendered to the sheriff as required by the terms of the bail bond; and
(B) Immediately issue a summons on each surety on the bail bond requiring the surety to personally appear on the date and time stated in the summons to show cause why judgment should not be rendered for the sum specified in the bail bond on account of the forfeiture.
(c)(1)(A) If the defendant is apprehended and brought before the circuit court within seventy-five (75) days of the date notification is sent under subdivision (b)(2)(A) of this section, then no judgment of forfeiture may be entered against the surety.
J.E. Bonding argues that it had a meritorious defense because the defendant was apprehended within seventy-five days from the date of notification to the surety that he
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should be surrendered to the sheriff. While J.E. Bonding made this argument below, it based its argument on a printout from the ADC website indicating that the defendant was incarcerated in the ADC on June 12, 2020, on charges for which he was sentenced in Hot Spring County on June 4, 2020. A plain reading of the statute requires that the defendant be brought before the circuit court within seventy-five days of the bond-notification date, which did not happen. Moreover, there was no affidavit or certification accompanying the ADC printout to establish its authenticity or accuracy, nor was it introduced at the hearing. Further, the bonding agent did not submit an affidavit in support of the motion or testify at the hearing on the motion. J.E. Bonding contends that permitting a $65,000 judgment to stand for a mistake when the underlying defendant was already captured and in the custody of the State would be a substantial miscarriage of justice. When presented with this argument below the court stated, I don’t need an apology. We had a contract. This is a business deal. It’s not about apologizing. This isn’t a criminal Defendant that we’re talking about, this is a company that makes an awful lot of money out of the ability to make bonds in this Court. If they don’t even have the common decency to call us when they have a question - or call you, who they employ to represent them - or call the Department of Correction or call the Garland County Detention Center - anybody - then I can’t deal with somebody like that. I can’t deal with a company like that.
So you all decide what you want to do. If they want to take their responsibility seriously, pay their bond when they make a mistake and keep on going and we’ll learn from our mistakes, then that’s fine with me. Otherwise, I will allow them off the bond but we’re not doing business anymore.
An abuse of discretion lies when the circuit court renders its decision improvidently, thoughtlessly, or without due consideration. Wood v. State, 2021 Ark. 201. In light of this
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exchange, we cannot find that the court abused its discretion. See Beth’s Bail Bonds, Inc. v. State, 2016 Ark. App. 183, at 4, 486 S.W.3d 822, 825 (“Bail Bonds asks us to reverse the bond-forfeiture judgment based on the fact Ford was in custody at the time of the show-cause hearing. We find no abuse of the trial court’s discretion and decline to reverse the bond-forfeiture judgment on that basis.”). Finally, J.E. Bonding argues the forfeiture order should have been set aside pursuant to Arkansas Rule of Civil Procedure 59. Rule 59(a)(6) permits a new trial when the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. J.E. Bonding asserts that the circuit court’s judgment was not supported by substantial evidence and it was contrary to the law, so the motion for a new trial should have been granted. An issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. Cochran v. Bentley, 369 Ark. 159, 176, 251 S.W.3d 253, 266 (2007). We have repeatedly held that an objection first made in a motion for new trial is not timely. Id. For that reason, a party cannot wait until the outcome of a case to bring an error to the circuit court’s attention. Id. Because J.E. Bonding failed to attend the bond-forfeiture hearing and waited until its motion for new trial to request to present its argument to the circuit court, its argument is not preserved for appeal. Affirmed. ABRAMSON and VIRDEN, JJ., agree. Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant. Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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